Karnataka High Court
Parvati And Ors vs The Assistant Commissioner And Ors on 5 December, 2023
Author: M.G.S. Kamal
Bench: M.G.S. Kamal
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MFA No. 201826 of 2017
IN THE HIGH COURT OF KARNATAKA R
KALABURAGI BENCH
DATED THIS THE 5 TH DAY OF DECEMBER, 2023
BEFORE
THE HON'BLE MR. JUSTICE M.G.S. KAMAL
MISCL. FIRST APPEAL NO 201826/2017 (LAC)
BETWEEN:
1. PARVATI
W/O MAHADEVAPPA JAGASHETTY,
AGE: 57 YEARS, OCC: HOUSEHOLD WORK,
R/O BASAVANAGAR,
MURANKERI,
VIJAYAPUR
2. SHIVALINGAPPA
S/O MAHADEVAPPA JAGASHETTY,
Digitally signed
by LUCYGRACE DECEASED, BY LRS:
Location: HIGH
COURT OF 2.A. MAHADEVI
KARNATAKA W/O SHIVALINGAPPA JAGASHETTY,
AGE: 35 YEARS, OCC: HOUSEHOLD WORK,
R/O BASAVANAGR,
MURANKERI,
VIJAYAPUR.
2.B. LAXMI
D/O SHIVALINGAPPA JAGASHETTY,
AGE: 14 YEARS, MINOR
BY M/G HER NATURAL MOTHER
CLAIMANT NO.2-A,
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MFA No. 201826 of 2017
R/O BASAVANAGAR,
MURANKERI,
VIJAYAPUR.
3. MUTTAPPA
S/O MAHADEVAPPA JAGASHETTY,
AGE: 34 YEARS, OCC: AGRICULTURE,
R/O BASAVANAGAR,
MURANKERI,
VIJAYAPURA.
4. NEELAKAKANTH
S/O MAHADEVAPPA JAGASHETTY,
AGE: 31 YEARS, OCC: AGRICULTURE,
R/O BASAVANAGAR,
MURANKERI,
VIJAYAPUR.
...APPELLANTS
(BY SRI HARSHAVARDHAN R. MALIPATIL, ADVOCATE)
AND:
1. THE ASSISTANT COMMISSIONER,
VIJAYAPURA-586101.
2. THE COMMISSIONER,
BIJAPUR URBAN DEVELOPMENT AUTHORITY,
VIJAYAPUR-586101.
3. THE DEPUTY COMMISSIONER,
VIJAYAPURA-586101.
...RESPONDENTS
(BY SMT. ARATI PATIL, HCGP FOR R1 & R3;
SRI S.S. HALALLI, ADVOCATE FOR R2)
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MFA No. 201826 of 2017
THIS MISCELLANEOUS FIRST APPEAL IS FILED
UNDER SECTION 54(1) OF LA ACT, PRAYING TO ALLOW
THIS APPEAL AND MODIFY THE JUDGMENT AND AWARD
PASSED BY THE II ADDITIONAL SENIOR CIVIL JUDGE,
VIJAYAPUR DATED 13.07.2017 IN LAC NO.28 OF 2010
AND FIX MARKET VALUE AT THE RATE OF RS.500/- PER
SQ FT. AND AWARD ALL STATUTORY BENEFITS.
THIS APPEAL, COMING ON FOR ORDERS, THIS DAY,
THE COURT DELIVERED THE FOLLOWING:
JUDGMENT
1. This appeal is filed by the appellants who were
claimants in LAC No.28/2010 on the file of II Additional
Senior Civil Judge, Vijayapura(herein after referred to
'reference Court'), being aggrieved by the judgment and
award dated 13.07.2017, whereby the reference Court has
dismissed the reference petition filed by the appellants
under Section 18 of the Land Acquisition Act, 1894.
2. Brief facts of the case are that;
a. Lands belonging to the appellants bearing Survey
Nos.304/2A and 304/2B totally measuring 11 acres
24 guntas of Mahalbagayat, Vijayapura, Vijayapura
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District were sought to be acquired vide notification
dated 22.05.2000 is issued under Section 4(1) of the
Land Acquisition Act, 1894 (herein after 'LA Act') for
the purpose of formation of a residential layout
known as Vijayapura-Basavana Bagewadi Road
Stage-2 by the Bijapura Urban Development
Authority-respondent No.2 (herein after 'respondent-
BUDA'). On 05.09.2003 the Land Acquisition Officer
passed general award Under Section 11 of LA Act
determining compensation payable in respect of the
aforesaid lands at Rs.90,000/- per acre. Being
dissatisfied with the same, the appellants sought for
reference of the matter by filing Misc.P.No.23/2008
which was allowed on 09.04.2010. Accordingly,
reference was registered as LAC No.28/2010.
b. The appellants in their reference petition had
contended that the award had been passed without
giving them an opportunity of filing their objections
and no notice was issued to them as required under
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LA Act. That the acquired lands are situated within
the City Corporation and within the limits of BUDA.
That the acquired lands ought to have been
considered as residential lands and not as agricultural
lands since the same are situated amidst residential
colonies with all the amenities and surrounded by
Zilla Panchayath Office, Balbhavan, High School,
Marriage Halls, other offices etc. The lands are
situated within the limits of Ward No.7. The
neighboring lands after converting into the non-
residential purposes have been sold at the rate of
Rs.400 to Rs.500/- per sq.ft. That even as in the
year 2000-01 private land developers had sold the
sites in the neighboring land at the rate of Rs.500 per
sq.ft. That the respondent-BUDA ought to have
determined the compensation on square foot basis.
c. That the City Municipal Council and the BUDA itself
had auctioned the property at Rs.350 per sq.ft on
15.08.2000 which is situated near the acquired lands.
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Hence, it was contended that the appellants were
entitled for higher amount of compensation.
3. Statement of Objections was filed on behalf of
the respondent-BUDA, contending that:
a. That the general award was passed by the Land
Acquisition Officer on 05.09.2003, fixing the
compensation at Rs.90,000/- per acre taking into
consideration of three years Sale Statistics and that
the appellants have received the total compensation
of Rs.18,28,632/- in respect of the entire lands from
the Land Acquisition Officer.
b. It is further contended that subsequently in order
to avoid litigation with regard to quantum of
compensation, the respondent-BUDA intended to
resolve the matter amicably, as such respondent-
BUDA on 03.08.2005 issued notices, calling upon the
appellants to appear on 09.08.2005 at about 3.00
p.m., for the purpose of passing of award by mutual
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consent. By further notices dated 22.08.2005 and
23.08.2005 appellants were called upon to appear for
the settlement. Upon service of said notices a
meeting was conveyed under the Chairmanship of the
Deputy Commissioner as well as the President of the
respondent-BUDA and local MLA and the
Commissioner in which the appellants were
personally present in the Office of respondent-BUDA.
That it was resolved in the said meeting that the
appellants would withdraw the writ petition filed by
them before the High Court of Karnataka, challenging
the acquisition and that they would execute their
consent on stamp papers agreeing to resolve the
matter with the respondent-BUDA.
c. It is further contended that, in furtherance to above
meeting the respondent-BUDA had intimated the
appellants on 10.10.2005 that a compensation of
Rs.10,00,000/- per acre along with one site
measuring 30ft X 40ft per acre would be given to the
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appellants and that appellants would relinquish their
rights in favour of the respondent-BUDA towards full
and final settlement of their claims. It is also
contended that the appellants had assured that they
would not file any application for enhancement of
compensation before the Land Acquisition Officer,
Bijapur. It is contended that the said settlement was
to be given effect to after obtaining approval by the
State Government.
d. It is further contended that on 29.03.2006, the
appellants who had filed Writ Petitions in WP Nos.
46642/2004 and 47328/2004 challenging the
notification for acquisition got their writ petitions
dismissed and the Deputy Commissioner had also
sent the proposal on 24.10.2005 to the State
Government seeking sanction. That, the State
Government by Order dated 16.02.2006 conveyed
its approval by fixing the compensation in a sum of
Rs.10,00,000/- per acre and providing site measuring
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30ft X 40ft per acre which was communicated by the
appellants by the respondent-BUDA by issuing
letters.
e. That thereafter, the appellants on 30.06.2006 had
executed registered power of attorney in favour of
one Gullappa Sidappa Shettigar to deal and to look
after the matter. Accordingly, a letter was also
written by the said power of attorney holder to the
respondent-BUDA to make the payment as per the
Government Order. That the said power of attorney
holder had also submitted an affidavit agreeing to
accept the Government Order, in addition the
appellants had submitted the acceptance letters and
affidavits assuring that they would not claim any
enhancement of compensation towards the acquired
land. That the respondent-BUDA had paid a sum of
Rs.46,46,368/- on 05.07.2006 and Rs.36,00,000/- on
05.07.2006 to the appellants which was duly
accepted by the appellants. Thus, it is contended that
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the appellants had accepted the settlement by
receiving the amount, contended as above.
f. It is further averred that the filing of reference
petition by the appellants under Section 18 of LA Act
without making the authority as necessary party was
a suppression of fact and misleading the Court. It is
further contended that the appellants have not
disclosed the settlement which was arrived at
between them and respondent-BUDA and the
payment made by the respondent-BUDA to the
appellants.
On these grounds dismissal of the petition was
sought.
4. It is necessary to note that respondent-BUDA
being aggrieved by the Order dated 09.04.2010 passed in
Misc.P.No.23/2008 had preferred a Civil Revision Petition
No.2005/2011, which was disposed-off by this Court on
15.03.2012. In the said civil revision petition it was
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specifically contended by the respondents-BUDA that the
order of reference passed in Misc.P.No.23/2008 was
unsustainable inasmuch as after passing of the general
award dated 05.09.2003 by the Land Acquisition Officer,
respondent-BUDA entered into a settlement with the land
owners and they were even paid monies as agreed by
them. Taking note of the said submission, this Court while
disposing of the above civil revision petition had opined
that to examine the aspect of settlement evidence of
parties was necessary, as such, keeping open all the
contentions of the respondents-BUDA (who was petitioner
in the said Civil Revision Petition) to be adjudicated by
reference Court in the pending proceedings, at Paragraph
8 had held as under:
"8. To examine the aspect of settlement, the
evidence of the parties is necessary. However,
in the interest of justice, it is necessary to keep
all contentions of the petitioner-BUDA open to
be adjudicated by the Reference Court in the
proceedings, which is stated to be pending now
in LAC NO. 28/2010. It is open to the BUDA to
adduce evidence in the said proceeding to show
that the land owners have received the
increased amount as agreed, over and above
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the award passed by the Land Acquisition
Officer, pursuant to the settlement arrived at
between the parties. If that is established by
the BUDA, it is needless to state that the land
owners will not be entitled for any higher
compensation in the reference proceeding. It is
also open to the petitioner to show that the
reference made is not a valid reference in law.
As all contentions of the BUDA are kept open to
be adjudicated by the Reference Court, there is
no need to interfere with the impugned order.
The revision petition stands disposed of in the
above terms."
5. The reference Court framed point for consideration
and recorded the evidence One Neelakantappa Mahadeva
Jagashetty has been examined as PW-1 and exhibited 33
documents marked as Ex-P1 to Ex-P33. One Basavaraja
Veerabadrayya Hiremath has been examined as RW-1 and
exhibited 48 documents marked as Ex-R1 to Ex-R37.
6. The reference Court taking note of the
contentions of the parties, oral and documentary evidence
and as well as the aforesaid Order of this Court in
CRP.No.2005/2011, by the impugned Order dated
13.07.2017 dismissed the reference petition of the
appellants by holding that petition was not maintainable
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on the premise that there was a settlement between the
appellants and respondent-BUDA and that the appellant
had received amounts from the respondent-BUDA. Being
aggrieved by the same, the appellants are before this
Court.
7. Sri. Harshavardhan R Malipatil, learned counsel for
the appellants reiterating the grounds urged in the
memorandum of appeal submits that;
a. The reference court grossly erred in rejecting the
petitions filed under Section 18 of the LA Act without
adverting to the factual and legal aspect of the
matter. He submits that the reference Court failed to
take into consideration that once general award was
passed there was no scope for passing of any
consent award at the behest, either of the appellants
or of the respondent-BUDA.
b. He submits that assuming there was a settlement,
the reference Court ought to have seen, if the same
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was in accordance with law or was it entered into in a
manner known to law. He refers to Section 35 and
36 of the Karnataka Urban Development Authorities
Act, 1984('KUDA Act' for short) and submits that if
the respondent-BUDA wanted to acquire the land, it
could have acquired the land by entering into
agreement with the prior approval of the
Government as provided under Section 35 of the
KUDA Act. Since that was not the case, he adds that
the only recourse that the respondent-BUDA had in
this case is seeking acquisition of land under Section
36 of the KUDA Act. He submits that once the
authority has opted to acquire land under Section 36
of the KUDA Act, the question of reverting to the
provisions of Section 35 of the KUDA Act would not
arise. Further, he refers to section 53 of the LA Act
and submits that settlement otherwise could have
been entered into in terms of provisions of Civil
Procedure Code ('CPC' for short) which is made
applicable to the proceedings under provisions in
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terms of section 53 of the LA Act. He submits that
plain reading of said provision would indicate that the
provisions of CPC would be applicable save to the
extent inconsistent with the provisions of LA Act and
that the settlement if any, had to be arrived at, was
to be in terms of provisions Order 23 of CPC in which
event the reference Court ought to have satisfied
itself with regard to the terms of the settlement,
lawfulness of the consideration and the enforceability
of the agreement. He submits that the reference
Court without taking into consideration of the
statutory provisions of law has affixed with seal of
approval to the settlement as claimed by the
respondent-BUDA and has consequently dismissed
the reference petitions without adverting to the
merits of the claim made by the appellants resulting
in miscarriage of justice.
c. He further submits that as regards the allegation of
suppression of facts made by the respondent-BUDA
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is concerned there is no dispute of the fact that a
sum of Rs.10,00,000/- was received by each of the
appellants under protest. He submits that though
the respondent-BUDA had contended and which
contentions has been accepted by the reference
Court that entire sum of Rs.11,50,000/- was paid,
the respondent-BUDA before this Court by their own
admission have stated that only a sum of
Rs.10,00,000/- was paid. He submits that the sites
which were purported to have been given to the
appellants as part of the settlement package have
never been allotted to the appellants in the manner
known to law. The appellants have not received any
such sites.
d. Thus, he submits that it was incumbent on the part
of the reference Court to have adverted to the terms
of settlement if any, and also ought to have satisfied
itself that whether the alleged terms of settlements
were performed/adhere to by the respondent-BUDA.
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Without compliance with these aspects of the matter
which the reference Court was duty bound has
erroneously rejected the applications. Hence, seeks
for allowing of the appeal.
8. Sri S.S. Halalli, learned counsel for the
respondent-BUDA vehemently submits that:
a. The appellant cannot be allowed to take
advantage of their own act and conduct. He submits
that admittedly after passing of the General Award
settlement proceedings were conducted under the
Chairmanship of President of the respondent-BUDA
duly participated by the appellants and appellants had
given consent letters in the form of affidavits, that
they would be satisfied with the award of
Rs.11,50,000/- per acre and as per agreed terms of
the settlements the appellants have received a sum of
Rs.10,00,000/- each. As such they cannot now be
heard to say that they have been coerced in entering
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into the agreement. He further submits that as
promised and represented eleven sites have been
transferred in the names of the appellants in terms of
the letter dated 17.07.2008 and mutation of the
names of the appellants have been effected in the
revenue records. Thus, he submits that in view of
these concluded terms of the agreement that was
lawfully entered into between respondent-BUDA and
the appellants, the appellants had no locus-standi to
file and pursue the petition under Section 18 of LA Act
which has been rightly dismissed by the reference
Court warranting no interference.
b. He refers to Rule 8 of the Karnataka Urban
Development Authorities (Incentive Scheme for
Voluntary Surrender of Land) Rules, 1991 (herein after
'Rules 1991') and submits that in terms of the
provisions of the said Rules 1991, the respondent-
BUDA is well within its power to enter into settlements
by allotting incentive sites which has been done in the
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instant case. Thus, he submits there is no illegality and
irregularity of any nature on the part of respondent-
BUDA and reference Court has rightly taken same into
consideration all these aspects while rejecting
reference application warranting no interference.
Hence, seeks for dismissal of the appeal.
9. Heard. Perused the records.
10. Before adverting to the rival contentions urged
by the learned counsel for the parties, it is necessary at
this juncture to refer to certain provisions of LA Act,
1894, KUDA Act, 1987 and CPC to the extent applicable
to the facts of the case. Since admittedly subject lands
are sought to be acquired for the purpose of formation
of layout know as Vijayapura-Basavana Bagevadi Layout
Stage 2, by the respondent-BUDA, the option for
acquisition that was available for the respondent-BUDA
was by having recourse to the provision of Chapter IV of
the KUDA Act. In that Section 35 provides for authority
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to acquire the land by agreement, the said provision
reads as under:
"35. Authority to have power to
acquire land by agreement.- Subject to
the provisions of this Act and with the
previous approval of the Government, the
Authority may enter into an agreement with
the owner of any land or any interest
therein, situated within the urban area for
the purchase of such land."
11. Admittedly, the respondent-BUDA has not resorted
for acquisition of the land under Section 35 of the KUDA Act.
Instead it has resorted to acquire the land in terms of Section
36 of the KUDA Act (as stand/prior to its amendment on
16.12.2017 ), which reads as under:
"36. Provisions applicable to the
acquisition of land other-wise than by
agreement.-
(1) The Acquisition of land under this Act
otherwise than by agreement within or
without the urban area shall be regulated by
the provisions, so far as they are applicable,
of the Land Acquisition Act, 1894.
(2) For the purpose of 1 [sub-section (2) of
section 50 of the Land Acquisition Act,
1894, the authority shall be deemed to be
local authority concerned.
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(3). After the land vests in the Government
under 16 the Land Acquisition Act, 1894,
the Deputy Commissioner shall, upon
payment of the cost of the acquisition, and
upon the Authority agreeing to pay any
further cost which may be incurred on
account of the acquisition, transfer the land
to the Authority, and the land shall
thereupon vest in the Authority."
12. Thus, notification dated 22.05.2000 came to be
issued under Section 4(1) of the LA Act. Needless to state
once the land was sought to be acquired in terms of the
provisions of the LA Act the provisions contained
thereunder become applicable and same required to be
complied with. Though, the appellants have contended
that they were not issued with the notice, providing
opportunities for filing objections and had questioned the
validity of the notification for the acquisition by filing writ
petitions in W.P.No.46642/2004 and 47328/2004, the said
contention may not survive for consideration at this
juncture, in view of the fact that the appellants have
withdrawn the said writ petitions.
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13. The Land Acquisition Officer apparently on
consideration of the matter had passed the general award
under Section 11 of the LA Act, determining the
compensation payable at Rs.90,000/- per acre. It is
appropriate to refer the Section 13A of the LA Act which
reads as under:
''13A correction of clerical errors, etc.,
(1). The Collector may, at any time but not
later than six months from the date of the
award, or where he has been required under
section 18 to make a reference to the Court,
before the making of such reference, by order,
correct any clerical or arithmetical mistakes in
the award or errors arising therein either on his
own motion or on the application of any person
interested or a local authority: Provided that no
correction which is likely to affect prejudicially
any person shall be made unless such person
has been given a reasonable opportunity of
making a representation in the matter.
(2). The Collector shall give immediate notice
of any correction made in the award to all the
persons interested.
(3). Where any excess amount is proved to
have been paid to any person as a result of the
correction made under sub-section (1), the
excess amount so paid shall be liable to be
refunded and in the case of any default or
refusal to pay, the same may be recovered as
an arrear of land revenue.]''
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Thus, once general award has been passed the Land
Acquisition Officer would become functus officio and in
terms of provisions of Section 13A of LA Act except
carrying out clerical or arithmetical mistakes if any in the
award, there cannot be any further re-consideration of the
same.
14. It may be relevant to refer Section 18 of the LA
Act which reads as under:
''18 Reference to Court (1). Any person
interested who has not accepted the award
may, by written application to the Collector,
require that the matter be referred by the
Collector for the determination of the Court,
whether his objection be to the measurement
of the land, the amount of the compensation,
the persons to whom it is payable, or the
apportionment of the compensation among the
persons interested.
(2). The application shall state the grounds on
which objection to the award is taken: Provided
that every such application shall be made,(a) if
the person making it was present or
represented before the Collector at the time
when he made his award, within six weeks
from the date of the Collector's award;
(b) in other cases, within six weeks of the
receipt of the notice from the Collector under
section 12, sub-section (2), or within six
months from the date of the Collector's award,
whichever period shall first expire.''
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15. As noted above, admittedly the award was
passed by the Land Acquisition Officer on 09.03.2003. In
terms of Section 18 of the LA Act any person interested
and who has not accepted the award, may by written
application to the Collector require the matter to be
referred for the determination of the Court. Thus, once the
general award was passed under Section 11 of the LA Act,
the appellants who were not satisfied with the award had
indeed sought for reference of the matter under Section
18 of LA Act. The matter was accordingly referred. As
such there is no other provision either under the Land
Acquisition Act, 1894 or the Karnataka Urban
Development Authority Act, 1987 providing for
reconsideration, settlement, agreement or compromise in
matter of acquisition or compensation after passing of the
general award. Therefore, the very question that requires
to be considered is the basis on which the respondent-
BUDA resorted entering into agreement/settlement with
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the appellants after passing of the general award and
particularly when the matter was being referred for
consideration under Section 18 of LA Act.
16. Sri S.S. Halalli, learned counsel for the
respondent pressed into service Rule 8 of Rules, 1991 and
submitted that the said Rule enables the respondent-BUDA
to enter into settlement with the land owners for the
purpose of expediting the acquisition process. He submits
that the entire settlement process in the instant case has
been undertaken, under and pursuant to the said Rules
1991. The reference Court seem to have accepted this
submission of respondent-BUDA. It is necessary at this
juncture to refer to the relevant provisions of the said
Rules, 1991. Aforesaid Rules 1991 have been implemented
on and from 29.01.1994. Rule 3 of the said Rules 1991
reads as under:
"3. £ÀªÃÉ ±À£UÀ À¼À ºÀAaPÉ.- PÀ£ÁðlPÀ £ÀUgÀ Á©üªÀÈ¢Þ
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- 26 -
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17. A perusal of the aforesaid Rule 3 of Rules 1991
would reveal that an option is given to the land owner to
surrender the land sought to be acquired without
objection by entering into settlement in response to the
- 27 -
NC: 2023:KHC-K:9018
notice received under Section 9 of LA Act, 1894 by
agreeing to accept incentive site, in addition to the
compensation. The other possibility of entering into said
settlement is, if the acquisition of land was initiated by the
authority pursuant to the Section 35 of the KUDA Act
which is already extracted herein above. Thus the stage of
Section 9 of LA Act and section 35 of KUDA Act is
obviously prior to passing of the general award.
18. Rule 8, Rules 1991 which is heavily relied upon
by the learned counsel for the respondent reads as under:
"8. ¸ÀE
é Zɬ
Ò ÄAzÀ ©lÄÖPÆ É qÀĪÀÅzÀÄ.- ºÀAaPÉ ¥Àqz É Àª £
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ºÀAaPÉAiÀiÁzÀ ¤ªÉñÀ£ª À £À ÀÄß ©lÄÖPÆÉ qÀ§ºÀÄzÀÄ ºÁUÉà ©lÄÖPÉÆlÖ
ªÉÄÃ¯É ¸ÁzsÀåªÁzÀμÀÄÖ «¼ÀA§«®èz,É ¸Àzj À ¤ªÉñÀ£ÀzÀ ¨É¯AÉ iÀÄ
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ÀÌ ÀÄ.Ý ."
19. The Rule 8 does not apply to the facts and
situation of the matter. A holistic reading of the aforesaid
rules would reveal that the provisions for allotment of
incentive sites are introduced to expedite the process of
acquisition and same need to be exercised at a stage prior
- 28 -
NC: 2023:KHC-K:9018
to passing of the general award. Thus, the contention that
the settlement arrived at in the instant case by the
respondent-BUDA with the appellants in exercise of power
under Rule 8 of Rules 1991 cannot be countenanced, more
particularly when the substantive provisions of law, either
under the Land Acquisition Act, 1894 or under the
Karnataka Urban Development Authority Act, 1987, do not
provide for such a settlement to be arrived at after passing
of the general award.
20. The other aspect of the matter to be looked at
is the application of provisions of CPC as contemplated
under Section 53 of the Land Acquisition Act, 1894 said
provisions read as under:
"53. Code of Civil Procedure to
apply to proceedings before Court.
Save in so far as they may be
inconsistent with anything contained
in this Act, the provisions of the Code
of Civil Procedure, 1908 (5 of 1908)
shall apply to all proceedings before
the Court under this Act."
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NC: 2023:KHC-K:9018
21. The reference to the word 'Court' in the said
Section is defined under Section 3(d) of the Act, which
reads as under:
"the expression 'Court' means a
principal Civil Court of original
jurisdiction, unless the [appropriate
Government] has appointed (as it is
hereby empowered to do) a special
judicial officer within any specified
local limits to perform functions of the
Court under this Act"
22. The aforesaid provisions makes it clear that
applicability of CPC is enabled in respect of proceedings
before the 'Court' in the proceedings under Section 18 of
the Land Acquisition Act, 1894. It may be appropriate to
refer to the Order 23 Rule 3 of CPC, it provides for the
compromise of the suit, the said provision is extracted
here under:
"3. Compromise of suit.-
Where it is proved to the satisfaction
of the Court that a suit has been
adjusted wholly or in part by any
lawful agreement or compromise [in
writing and signed by the parties], or
where the defendant satisfies the
- 30 -
NC: 2023:KHC-K:9018
plaintiff in respect of the whole or any
part of the subject-matter of the suit,
the Court shall order such agreement,
compromise or satisfaction to be
recorded, and shall pass a decree in
accordance therewith [so far as it
relates to the parties to the suit,
whether or not the subject-matter of
the agreement, compromise or
satisfaction is the same as the
subject-matter of the suit]:
[Provided that where it is alleged by
one party and denied by the other
that an adjustment or satisfaction has
been arrived at, the Court shall decide
the question; but no adjournment
shall be granted for the purpose of
deciding the question, unless the
Court, for reasons to be recorded,
thinks fit to grant such adjournment.]"
23. The aforesaid provision of CPC mandates that the
Court which is considering the issue of compromise shall
ensure that the agreement or compromise is in writing and
signed by the parties and that it is satisfied with regard to
the terms thereof and shall pass the decree in accordance
there with.
24. It is trite law that a compromise or agreement
which is unlawful or terms of which are unenforceable
- 31 -
NC: 2023:KHC-K:9018
cannot be accepted. The Court cannot be oblivious of its
duty in recording the satisfaction of the terms of the
compromise. Admittedly, there is no agreement or
compromise in writing and signed by the parties filed
before the Court as required under Order 23 Rule 3 of
CPC. No Such compromise is entered into between the
parties before the reference Court.
25. The facts of the case would reveal that the
respondent-BUDA heavily relied upon the Ex-R1, the
proceedings dated 23.08.2005 and 22.04.2006 and the
affidavits, letters and receipts purportedly issued by the
appellants as per exhibits produced at Ex-R2 to EX-R8, Ex-
R12 to Ex-R20, Ex-R23-Ex-R25, Ex-R30-Ex-R33, Ex-R39-
Ex-R45 and Ex-R48. The reference Court relying upon the
said documents has came to the conclusion that the said
documents would establish the settlement between the
appellants and the respondent-BUDA. The reference Court
has also referred to the Order dated 15.03.2012 passed by
this Court in CRP.No.2005/2011, which is extracted herein
- 32 -
NC: 2023:KHC-K:9018
above and has concluded the respondent-BUDA has
established the settlement having been arrived between
the appellants and the respondent-BUDA.
26. Though at the first blush, it appears that the
documents relied upon the respondent-BUDA would justify
its stand of there having been a settlement arrived at
between the appellants and the respondent-BUDA, a
further probe in the matter would reveal that the said
settlement cannot be termed as a settlement in eye of
law. Firstly as already noted above, no such settlement is
permissible in any of the provisions of law referred to
hereinabove after passing of the general award. Secondly,
though the respondent-BUDA contended before the
reference Court that the agreed sum of Rs.11,50,000/-
was paid to the appellants, admittedly only a sum of
Rs.10,00,000/- was paid and which was received by the
appellants under protest. Thirdly, incentive sites have not
been allotted to the appellants in the manner known to law
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and there is no allotment conveying right, title and interest
in favour of the appellants in the eye of law.
27. It may be relevant at this juncture to refer to
the process of alleged allotment of incentive sites by the
respondent-BUDA. Any allotment of sites by an authority
can be done in the manner provided under the relevant
provisions of law/rules in that regard. The allotment
generally is preceded by an order/resolution of the
concerned Authority for allotment followed by issuance of
letter of allotment and thereafter execution and
registration of necessary deed of conveyance with or
without conditions in favour of the allotees in accordance
with law. Right, title and interest in respect of allotted site
would vest in favour of the allotees only on compliance of
these requirements. Admittedly, no such procedures have
been followed or adhered to by the respondent-BUDA in
the instant case while allegedly allotting the sites in favour
of appellants.
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28. Learned counsel for the respondent-BUDA
refers to letter dated 17.07.2008 produced at document
No.20 and 21 along with memo 11.09.2023 produced
before this Court. A perusal of the said documents would
reveal that the same is a communication issued by the
Commissioner of respondent-BUDA addressed to the
Tahilsdar, Vijayapur. In terms of which, instructions have
been given to the Tahilsdar to mutate the names of the
appellants in respect of the sites mentioned therein.
Learned counsel for the respondent-BUDA also refers to
documents produced at document No.12 which is mutation
register extracts produced along with the memo dated
27.07.2023 before this Court and submits that the said
documents would establish the allotment of the sites in
favour of the appellants and the same stands in
compliance with the provisions of the law.
29. As already noted, allotment of the sites merely
by mutating the names of the allotees in the revenue
records without causing execution and registration of
- 35 -
NC: 2023:KHC-K:9018
deeds of conveyance would not meet the requirements of
conveying the right, title and interest in the immovable
property as contemplated under the provisions of the
Transfer of Property Act, 1882 and Indian Registration Act,
1908. Moreover, the aforesaid documents which are
produced before this Court were also not made available
before the reference Court.
30. The reference Court without adverting to these
legal aspect of the matter has apparently swayed away by
the fact of appellants admitted to have received
Rs.10,00,000/- per acre as the compensation of the land
acquired. That alone could not have been a factor for the
reference Court to have dismissed the reference without
adverting into merits of the case as the appellants are
claiming the compensation in a sum of Rs.350/- to
Rs.500/- per sq.ft. Non-adverting to these factual and
legal aspect of the matter warrants interference by this
Court.
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NC: 2023:KHC-K:9018
31. It may also be necessary to note at this
juncture this Court on 27.07.2023 taking note of the facts
of the case had passed the following Order, which read as
under:
"This is a classic case where the
development authority has entertained a
busybody to claim compensation on behalf of
the land losers based on a General Power of
Attorney.
The claim of the land losers is that the
authority had resolved to allot one site
measuring 30 x 40 sq.ft. per acre as an
incentive for the voluntary surrender of the
land. The land losers claim that these
incentive sites were never allotted to them.
However, the learned counsel for the
authority initially submitted that a sum of
Rs.1,50,000/- being the value of each site
was paid to the land losers, but now made a
'U' turn claiming that the incentive sites were
indeed allotted to the land losers.
The learned counsel for the authority,
though has placed on record some mutation
extracts in this regard, has not furnished the
letters of allotment and the deeds of
conveyance of allotted sites to the concerned
land losers.
It is now stated at the bar that the power
of attorney of the land losers was the
erstwhile chairman of the authority and he
had misused his acquaintances in the
authority for personal gain by obtaining a
power of attorney from the land losers.
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NC: 2023:KHC-K:9018
Therefore, it appears on the face of it,
that these incentive sites were gobbled up by
the power of attorney leaving the land losers
in the lurch.
Therefore, this is a fit case where this
Court should thoroughly examine the process
adopted by the authority in awarding the
compensation as well as in allotting the
incentive sites to the land losers. After all, the
land losers would have volunteered to hand
over possession of their lands in the fond
hope that they would be allotted the incentive
sites and that they would have a roof over
their heads.
In that view of the matter, learned
counsel for the authority is directed to place
the complete material to establish that the
incentive sites were indeed allotted to the
land losers and appropriate deeds of
conveyance were executed in their favour.
This would help the Court in issuing
further directions to the authority.
Until the aforesaid exercise is done, the
authority shall not allot any sites to any
allottee, in any layout, formed by it. In the
event of violation of this directive, the
Commissioner of the authority shall
personally be held responsible for all the
consequences.
List on 07.08.2023."
In furtherance, thereon on 30.10.2023 passed the
following Order, which read as under:
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NC: 2023:KHC-K:9018
"In response to order dated
27.07.2023 passed by this Court, Sri S.S.
Halalli, learned counsel appearing for the
Corporation fairly submits that there has
been no allotment of incentive sites to
the appellants/land losers. He however,
referring to the documents produced
along with the memo dated 11.09.2023
submits that a communication dated
17.07.2008 was issued by the Vijayapura
Urban Development Authority to the
Tahsildar to mutate names of the
appellants in respect of the site Nos.53,
54, 55, 56, 57 and 58. He further
submits that in furtherance to the
communication dated 17.07.2008,
mutation entries have already been
effected. Thus he submits, except the
said communication and mutation entries
there has been no other records available
in the office of the Vijayapura Uban
Development Authority with regard to the
allotment of incentive sites to the
appellants.
Be that as it may. As this Court
taking serious note of the entire process
of allotment of sites adopted by the
Authority had specifically directed to
place complete material before this Court
to establish that the incentive sites
indeed were allotted to the
appellants/land losers and the
appropriate deeds of conveyance had
been executed in their favour. The
material produced by the Authority and
being relied upon before this Court hardly
meets the said requirements. As there
has been admittedly neither any
resolution nor letters of allotment nor
deeds of conveyance having been
executed in favour of the appellants/land
- 39 -
NC: 2023:KHC-K:9018
losers, a communication as that of the
one produced as document No.20 along
with the memo dated 11.09.2023 and
purported mutation thereof, cannot be
countenance to be the lawful allotment of
incentive sites to the appellants/land
losers.
In that view of the matter, the
respondent authority is directed to
furnish the description of sites that are
available and to be allotted to the
appellants/land losers by the next date of
hearing. It is needless to state that since
admittedly there has been no allotment of
sites to the appellants, the respondent
authority shall initiate process of allotting
the site forming part of the layout for
which their land was acquired.
It is made clear that, Authority is at
liberty to initiate steps to retrieve the
sites purported to have been allotted by
the respondent authority in terms of
document No.20 and the consequent
mutation made thereof.
Compliance by 15.11.2023.
List on 15.11.2023.
32. In response to the aforesaid orders, Sri. S S
Halalli, learned counsel for the respondent-BUDA filed a
memo providing the details of the sites which are available
and which could be allotted to the appellants subject to
approval by the Board of the respondent-BUDA and the
- 40 -
NC: 2023:KHC-K:9018
Government. The fact narrated hereinabove would reveal
that the respondent-BUDA appears to have not discharged
its statutory obligation of disbursing the compensation or
allotting the sites in the manner known to law.
33. As already noted by this Court in the Orders referred
hereinabove, there appears to be some mischief played by
some middlemen in collusion with the persons in the
Authority. It is the lookout of the respondent-BUDA to take
such steps, initiate such actions in accordance with law to
recover/retrieve the sites which are purportedly allotted in
the manner referred hereinabove in terms of the
document Nos.20, 21 and 12. The said allotment not
being in accordance with the law, cannot be held to the
allotment in favour of the appellants.
34. For the aforesaid reasons and analysis this
Court is of the considered view that the reasoning and
conclusion arrived at by the reference Court regarding the
settlement and consequent impugned Order is not
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NC: 2023:KHC-K:9018
sustainable and the same is required to be set aside by
remanding the matter to the reference Court to hear the
parties afresh and pass appropriate Orders on the claim of
the appellants for enhancement of compensation after
affording sufficient opportunities in accordance with law. It
is made clear that the amounts which have already been
paid by the respondent-BUDA and admittedly received by
the Appellant may also be taken into consideration while
determining the claim for enhancement.
35. With the above observation and for the
foregoing reasons, following:
ORDER
a) The appeal is allowed.
b) The impugned Order passed in LAC
No.28/2010 dated 13.07.2017 on the file of
II Additional Senior Civil Judge, Vijayapura is
set aside.
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NC: 2023:KHC-K:9018
c) The matter is remanded to the reference
Court.
d) All contentions with regard to
determination of compensation payable to
the appellants are kept open to be urged
before the reference Court.
e) Since, the parties are represented by their
learned counsels they shall appear before the
reference Court on 20.01.2024 and the
reference Court after affording sufficient
opportunities to the parties shall dispose-off
the matter within an outer limit of six months
thereafter.
Sd/-
JUDGE
SBS, RL
